Simon Lewis in the Court of Appeal

December 13, 2019

Judgment was handed down this week by the Court of Appeal in an interesting case about “whistleblowing”.

Simon Lewis of Exchange Chambers represented the successful respondent, as he has in the tribunals below.

The Court held that a “detriment” being relied upon in a claim under the Employment Rights Act 1996 for unlawful detriment on the ground of a protected disclosure (i.e. in a “whistleblowing” claim) must be a detriment falling within “the field of employment” (or, put another way, it must be a detriment suffered in the claimant’s “capacity” as a worker/employee).

The judgment may be of a particular relevance to public sector employers who, in addition to acting in the capacity of a whistleblower’s “employer”, also discharge a function, provide a service or otherwise make a decision that may adversely affect the same individual (and which the claimant asserts was materially influenced by the alleged whistleblowing).

The hearing was before Lord Justice Underhill, Vice-President of the Court of Appeal (Civil Division), Lady Justice Rose and Lady Justice Simler.